Spain v Commonwealth of Australia

Deed of Settlement 12 By a Deed of Settlement dated 17 December 2002 entered into between the Bank, the applicant and Burymore, the applicant and Burymore released and discharged the Bank from any liability relating to any claim or allegation against the Bank arising from any matters which occurred before the execution of the Deed (including any claims connected in any way with Jack Corporation), and the Bank agreed that, notwithstanding the acknowledgments of indebtedness by Burymore and the applicant, the Bank's rights against them would be limited to the extent of the proceeds of sale of the Hope Valley property, and the Bank would provide the applicant with a settlement payment of $200,000. 13 According to the applicant, he negotiated the Deed of Settlement on his behalf and on behalf of Burymore. Mr Richard Lorraway, Head of Asset Structuring in Western Australia for the Bank, it seems, negotiated on the Bank's behalf. 14 According to the applicant, he did not know, before he executed the Deed of Settlement, that Mr Jacobs was actually employed by Ferrier Hodgson, a firm of chartered accountants and that Mr Jones, who had earlier been appointed by the Bank as Investigative Accountant to examine the business affairs of Burymore and who later became Administrator of Jack Corporation, was Mr Jacob's boss at that firm. Mr Jacobs was on secondment to the Bank at the relevant times. He says that if he had known these facts he would not have agreed to Mr Jones being appointed to either of those two positions in relation to Burymore and Jack Corporation respectively. It is to be remembered that there was no contractual or other relationship between the Bank and Jack Corporation.

Demands by liquidator of Jack Corporation 15 Mr Martin Jones was appointed liquidator of Jack Corporation and by letters dated 2 December 2002, in that capacity, he wrote to the applicant advising that he considered that there were strong grounds to show that the directors including the applicant had breached s 588G of the Corporations Act 2001 (Cth) in relation to Jack Corporation as Trustee for the Daniels Unit Trust formerly trading as "Liars Saloon", and as Trustee for the Coke Unit Trust formerly trading as "E Bar", and that he had quantified the claims against the applicant for insolvent trading in the sums of $136,061.87 and $389,522 respectively.

Applicant's previous Federal Court proceedings 16 On 10 November 2003 the applicant commenced proceedings in this Court against the Bank and Ferrier Hodgson alleging that both respondents had breached terms and conditions of the Deed of Settlement in that both had falsely accused the applicant in the letters dated 2 December 2002 to which I earlier referred. This proceeding was dismissed for reasons of lack of jurisdiction as disclosing no Federal matter: Spain v National Australia Bank [2004] FCA 87. Keifel J concluded that any claim in connection with the Deed of Settlement would appear to arise only under the general law, and that the "lack of explanation of the applicant's case against the respondents does not make it possible to see any connection between it and a federal statute": Spain v National Australia Bank at [14]. 17 After quoting this passage from her Honour's judgment, the applicant deposed in this proceeding that "[t]he federal statutes referred to were most likely the repealed sub-s 69C of the Banking Act, which provided the rules to establish the state of mind of a body corporate in relation to conduct of its directors, servants and agents". The applicant contends that under the repealed ss 69C(1) and (2) of that Act, the only fact he needed to establish to prove his claim was the relationship of agency and seconded employee between the Bank, Ferrier Hodgson, Mr Jacobs and Mr Jones, and by doing this it would have been impossible for Mr Jones to claim that he was acting in his own capacity. 18 The applicant in the present proceedings submits that, by reason of these letters of demand by the Liquidator of Jack Corporation, the Bank had breached the terms of the Deed of Settlement, and that he, the applicant, was therefore entitled to receive back the Hope Valley property. He alleged that Mr Lorraway, in the context of concluding the Deed of Settlement, had agreed that the Bank would ensure that he would never be contacted again and that this included contact by its former agents or servants. There is no responsive affidavit from the respondent. I will assume, for present purposes, that Mr Lorraway said this on behalf of the Bank. This gives rise to a number of observations. First, it was a statement made which reflects clause 2 of the Deed of Settlement by which the parties agree to resolve all matters between them. Second, it was not a statement made in relation to the affairs of Jack Corporation which was not a party to the Deed of Settlement nor a company with which the Bank had dealings. Third, even if the letters of demand constituted a breach of the Deed of Settlement, and in my opinion they did not, this does not give rise to a claim under s 69E of the Banking Act against the respondent. 19 The apparent relationship between the present case and the Banking Act, as appears from the applicant's affidavit at [1], is that the Bank is a body corporate under Div 1 s 9 of that Act and has authority to carry on a banking business in Australia. The basis for the claim against the respondent under the Banking Act is very difficult to understand. I have set out below the central submissions of the applicant so that, to the extent possible, they speak for themselves. 11. In 1999, Parliament changed the Banking Act by repealing civil sections that provided a defence against imprudent conduct in transactions between banker and customer. Thereby, in reality, repealing the civil statutes adversely affected or terminated a pre-existing right that an owner enjoyed in relation to his property, with the right being to gain justice by way of the Courts if the need should arise. For example; if say a person owned some particular property that was acquired by a bank through unethical means then it was possible to seek recompense by way of civil procedure in Court. This is not possible now. 12. However, the reason for my Application isn't in the fact Parliament dispensed with the civil provisions in the Banking Act rather, it is in the fact that despite being aware that imprudence has taken place, Government authorities won't investigate the bank under the replacement provisions, or prudential matters as per the Act. This means I have no choice, but to litigate against the Commonwealth under s 69E of the Act, because it is impossible to gain justice by other legislation.

Banking Act 1959 20 Section 69E of the Banking Act provides that: 69E Compensation for acquisition of property (1) If: (a) apart from this section, the operation of this Act would result in the acquisition of property from a person otherwise than on just terms; and (b) the acquisition would be invalid because of paragraph 51(xxxi) of the Constitution; the Commonwealth is liable to pay to the person compensation of a reasonable amount as agreed on between the Commonwealth and the person. If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia for the recovery from the Commonwealth of such reasonable amount of compensation as the Court determines. (2) Any damages or compensation recovered or other remedy given in a proceeding that is commenced otherwise than under this section is to be taken into account in assessing compensation payable in a proceeding that is commenced under this section and that arises out of the same event or transaction. (3) In this section: acquisition of property and just terms have the same respective meanings as in paragraph 51(xxxi) of the Constitution. 21 Subsections 69C(1) and (2) of the Banking Act were repealed by Item 74 of Schedule 2 of the Financial Sector Reform (Amendments and Transitional Provisions) Act (No 1) 1999 (Cth). The repeal of ss 69C(1) and (2) took effect on the date of assent to that Act, which was 17 June 1999. Prior to their repeal, ss 69C(1) and (2) provided that: 69C Conduct of directors, servants and agents (1) Where it is necessary to establish, for the purposes of this Act or the regulations, the state of mind of a body corporate in relation to particular conduct, it is sufficient to show: (a) that the conduct was engaged in by a director, servant or agent of the body corporate within the scope of his or her actual or apparent authority; and (b) that the director, servant or agent had the state of mind. (2) Any conduct engaged in on behalf of a body corporate by a director, servant or agent of the body corporate within the scope of his or her actual or apparent authority shall be deemed, for the purposes of this act and the regulations, to have been engaged in also by the body corporate unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct.

Consideration 22 On the facts and circumstances set out above, there has not been any acquisition of the applicant's property by reason of the operation of the Banking Act. 23 Indeed, and fundamentally, the Hope Valley property was acquired by the Bank from Burymore and not from the applicant. For that reason alone he has no standing to bring such a claim even if it were otherwise maintainable which in my view, it is not. Burymore was de-registered on 26 June 2005. 24 Moreover, the Hope Valley property was acquired by the Bank pursuant to its rights as mortgagee from Burymore as mortgagor under the terms of the mortgage registered on 5 April 2001. The Bank's entitlement to exercise its rights under this mortgage was acknowledged both by the applicant and Burymore in cl 1.1 of the Deed of Settlement. The alleged breaches of the Deed of Settlement, as I earlier concluded, do not give rise to any claim under s 69E of the Banking Act. The applicant's real dispute, whatever the merits may be, is with the Bank. It is no concern of the respondent. 25 The repeal of ss 69C (1) and (2) of the Banking Act could not have caused any acquisition of the applicant's property resulting from the operation of that Act. The repeal of ss 69C (1) and (2) does not constitute "the operation of this Act" within the meaning of s 69E(1)(a) of that Act, and whatever the effect of that repeal, it could not, and did not, result in any acquisition of the applicant's property. 26 In my opinion, the application should be dismissed pursuant to s 31A(2) of the Federal Court Act as the applicant has no reasonable prospect of successfully prosecuting the proceeding. The applicant has not and cannot show any acquisition of his property by operation of the Banking Act. 27 It is unnecessary to consider the further ground that the proceeding and the claim for compensation against the Commonwealth is frivolous and vexatious and an abuse of the process of the Court, and for those reasons should also be dismissed pursuant to Order 20 rule 5 of the Federal Court Rules.

Conclusion 28 For these reasons, the application should be dismissed with costs. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.